Law Times

Page 14 June 2, 2014 • Law Times www.lawtimesnews.com expressed concern that approach put to jury by plaintiff 's counsel regarding damages would have resulted in excessive damages award and asked trial judge to address concern in her charge to jury. Trial judge accepted sub- mission and directed jury not to undertake mathematical calcu- lation extrapolating figure over plaintiff 's entire lifetime. Defen- dant's counsel objected to jury charge but trial judge did not re- charge jury. Jury returned verdict of $200,000 for non-pecuniary general damages; $5,600 for past housekeeping expenses and $28,000 for future housekeeping expenses. Defendant appealed decision on basis that jury was not properly charged. Appeal dis- missed. Trial judge was uniquely placed to evaluate errors and de- termine whether they could have been corrected. Trial judge ad- equately corrected error that may have been created by defendant's closing submission in respect of quantifying non-pecuniary gen- eral damages. Jury was provided with adequate guidance on how to assess damages. Hansen v. Williams (Feb. 12, 2014, Ont. C.A., E.E. Gillese J.A., Paul Rouleau J.A., and M. Tulloch J.A., File No. CA C57098) 237 A.C.W.S. (3d) 629. Conflict of Laws LETTERS ROGATORY Requested order did not infringe on Canada's sovereignty In 2011, purchasers of poly- urethane foam launched series of class action lawsuits against manufacturers in various United States district courts. Plaintiffs alleged that manufacturers con- spired to fix price of foam, con- trary to Sherman Act, which was American equivalent of Com- petition Act (Can.). Various ac- tions were consolidated in United States District Court for Northern District of Ohio. Respondents re- sided in Ontario. They were non- parties in United States. Appli- cant said that they had evidence relevant to consolidated action. District Court issued letters roga- tory to take evidence and compel production of documents from respondents. Respondents had worked for company that was alleged to have participated in price-fixing scheme. Applicant applied to Ontario court for or- ders to enforce letters rogatory. Application granted in part. One respondent was not working for company at time period specified in consolidated action. Applica- tion was dismissed as against him. Requested order did not infringe on Canada's sovereignty, and it was in interests of justice that let- ters rogatory be enforced. In addi- tion, principle of judicial comity militated in favour of granting or- der. Respondent's concerns could be met by fashioning order that would protect their right against self-incrimination. Proposed or- der should contain conditions that remaining respondents testi- fied with protections of ss. 7 and 13 of Canadian Charter of Rights and Freedoms, Canada Evidence Act, and Evidence Act (Ont.). Be- fore finalizing order, Commis- sioner of Competition was to be permitted to make submissions. Neuwirth v. DaCosta (Jan. 22, 2014, Ont. S.C.J., Goldstein J., File No. CV-13-494560) 237 A.C.W.S. (3d) 634. Contracts FORMATION No reason to believe easement summary not intended to be binding and enforceable Parties entered into discussions with view to having plaintiff ap- ply to sever and transfer buildable waterfront lot. Parties entered into easement summary where plaintiff was granted right of way over lot and new road. Parties also entered into severance summary. Application was made for consent to grant easement and provisional consent was granted. Defendant complained that easement that was granted was considerably wider than easement he agreed to grant plaintiff. Plaintiff reassured defendant that it was never his intention to construct wide road. Defendant refused to complete easement application. Plaintiff sought declaration that agree- ment entered into for easement over defendant's land was bind- ing on defendant and for vesting order of easement. Defendant counterclaimed for order requir- ing plaintiff to sever parcel of land from its property and transfer it to defendant. Plaintiff brought mo- tion for summary judgment. Mo- tion granted. Parties entered into binding and enforceable agree- ment where plaintiff was granted easement over defendant's land. Defendant admitted that ease- ment summary was agreement. Easement summary was intended to be preliminary agreement, but there was no reason to believe that it was not intended to be binding and enforceable. Easement sum- mary was detailed and contained all required and necessary terms to qualify as agreement and it was commercially reasonable. Parties acted on agreement. Severance summary also comprised binding agreement. Severance summary constituted preliminary agree- ment that was binding on parties. Defendant's own words and ac- tions supported finding that par- ties intended to enter into binding agreement. Severance summary contained all terms that bound parties in relation to severance and plaintiff did not agree to ad- ditional terms and did not agree to pay defendant sum of money if application for severance was un- successful. Plaintiff was entitled to easement on terms set out in ease- ment summary notwithstand- ing that application for severance of lot had not been completed. If severance was ultimately de- nied, plaintiff was still entitled to easement. Plaintiff had taken all reasonable steps to ensure that lot was severed for benefit of de- fendant. Defendant's refusal to complete easement agreement constituted breach of obligations and plaintiff was entitled to judg- ment. Plaintiff was not in breach of severance summary agreement and counterclaim was dismissed. Nordlund Family Retreat Inc. v. Plominski (Oct. 5, 2012, Ont. S.C.J., E.J. Koke J., File No. 25009/09) 237 A.C.W.S. (3d) 803. Corporations RECEIVERS Debtor's proposal was inferior in all respects Bid process employed by receiver was done pursuant to sales and marketing order and was trans- parent. Debtor did not partici- pate in process until well after bid deadline had passed. Eleven other bidders complied with rules of sales process set by receiver, and particular bidder submitted superior bid. Receiver and par- ticular bidder entered agreement of purchase and sale of certain assets of debtor. Receiver brought motion for sale approval. Debtor brought motion for temporary stay of receivership and its sale process for 30 days to enable it to complete re-financing. Debtor's motion dismissed. Receiver's mo- tion granted. Debtor sought ex- tension of bid deadline to make a late bid. Stay requested by debtor would seriously impugn integ- rity of court-sanctioned sales and marketing process. Debtor could have participated in bid process. To permit debtor to stay sales process in circumstances would risk seriously eroding confidence of market in integrity of receiver- ship sales processes sanctioned by Ontario Superior Court of Justice. Debtor's proposal was inferior in all respects. Home Trust Co. v. 2122775 Ontar- io Inc. (Feb. 18, 2014, Ont. S.C.J. [Commercial List], D.M. Brown J., File No. CV-13-10313-00CL) 237 A.C.W.S. (3d) 650. Damages PERSONAL INJURIES Prisoner violence was primary concern in transport Plaintiffs were prisoner passen- gers in a transport vehicle that was in custody and control of police service ("PS"). Plaintiffs were be- ing transported from courthouse to detention centre when vehicle was involved in motor vehicle accident and plaintiffs suffered injuries. Vehicle did not have seat belts or any type of restraint system to protect occupants. There was no padded seating. PS claimed that it was unsafe to have restraint systems and padding on seats for reason of prisoner and officer safety. Plaintiffs claimed that they were entitled to puni- tive damages against PS. Action dismissed. Conduct of PS in tak- ing responsibility for maintaining design of vehicles was not type of conduct that should appropriately attract punitive damages. There was no conduct on part of PS that was reprehensible or should draw condemnation of community. PS saw prisoner violence as primary concern in transport and guarded against it as first priority and that view was rationally sustainable on facts and expert evidence. Puni- tive damages was not appropri- ate mechanism to achieve goal of improving conditions of prisoner safety. There was no basis to con- clude that conduct of PS should attract sanction and denuncia- tion. Benson v. Cichorczyk (Feb. 12, 2014, Ont. S.C.J., Whitaker J., File No. 03-CV-244790CM2, 03-CV- 248513CM2) 237 A.C.W.S. (3d) 791. Employment WAGES No express written or oral promise that stipend would be tax-free Physicians were foreign nation- als who worked for hospital in fellowship positions. Physicians received stipends that were not treated as regular employment income. Hospital did not deduct income tax, employment insur- ance (EI), or Canada Pension Plan (CPP) contributions. Fol- lowing adverse ruling by Canada Revenue Agency, hospital started deducting income tax, EI, and CPP contributions from stipends. Hospital increased stipends to offset EI and CPP contributions but not income tax deductions. Physicians commenced proposed class action against hospital for damages for breach of contract. Hospital brought motion for summary judgment dismissing action. Motion granted; action dismissed. There was no factual or legal basis for concluding there was express, implied, or collateral contract promise that physicians' stipends would be tax-free. There was no evidence of express writ- ten or oral promise that stipend would be tax-free. Even assum- ing common understanding that stipend was not subject to tax, that understanding did not amount to guarantee. Common mistake would only be basis for rescission and not claim for breach. Alleged implied term failed test of necessi- ty. There was no basis to presume parties' intention was that stipend would be tax-free or would be in- creased to take tax into account. Criteria for collateral contract was not established. Pasian v. Academic Clinicians' Management Services (Dec. 17, 2013, Ont. S.C.J., Perell J., File No. 08-CV-367410-00CP) 237 A.C.W.S. (3d) 668. Human Rights Legislation DISCRIMINATION No connection between member's disabilities and bases for terminating occupancy rights Co-operative operated 215-unit housing complex. Member had lived in bachelor unit in complex since December 2005. Member had various disabilities and re- quired daily personal support services. Member violated co- operative's bylaws, policies, pro- cedures, and housing agreement on various occasions. Violations consisted of uncleanliness, disre- pair, and allowing son to reside in unit when he was not member of co-operative. Co-operative termi- nated member's membership and occupancy rights in August 2013. Co-operative brought application for writ of possession. Applica- tion adjourned on terms. Writ was to be issued at future time to allow member more time to relo- cate. Member failed to establish discrimination under Human Rights Code (Ont.). There was no connection between mem- ber's disabilities and bases for terminating her membership and occupancy rights. Member's dis- abilities did not prevent her from keeping her unit clean. Member had simply failed to clean up after her pets. Co-operative had suffi- ciently accommodated member. Nothing suggested member's dis- abilities were factor in failing to fix damage to unit or in allowing son to live with her. Castlegreen Co-Operative Inc. v. Carmichael (Jan. 22, 2014, Ont. S.C.J., F.B. Fitzpatrick J., File No. Thunder Bay CV-13-0383) 237 A.C.W.S. (3d) 738. Injunctions INTERLOCUTORY RELIEF Genuine risk applicant would put assets beyond claims of respondents to avoid judgment Dispute arose in family about transactions involving owner- ship of corporation and concerns about how applicant dealt with corporate assets. Dispute gave rise to removal of applicant as direc- tor of corporations. Applicant brought application for oppres- sion remedy against corporations and individuals. Respondents brought application for dam- ages, accounting and declarations as to ownership of shares and property and sale of properties. Respondents sought Mareva or- der against applicant restraining competition and order grant- ing them exclusive possession of residential portions of properties. Respondents asserted applicant closed bank accounts without no- tice and transferred money to his own personal accounts. Respon- dents asserted applicant trans- ferred assets in India belonging to family; removed groceries from corporation's supermarket; and failed to pay his share of bills re- lating to properties. Respondents asserted applicant was carrying on business in direct competition with corporation. Application granted. Interim and interlocu- tory injunction was granted pro- hibiting applicant from selling as- sets in his name. There was strong prima facie case of fraud against applicant with respect to changes in ownership of corporation and properties. Strong prima facie case was made out in respect of appli- cant closing accounts and taking proceeds for himself. There was real and genuine risk that appli- cant would put his assets beyond claims of respondents for purpose of avoiding judgment. There was risk of irreparable harm to respon- dents if Mareva injunction were not granted. Injunction would preserve assets for successful par- ty. Balance of convenience did not favour applicant. If respondents gave notice to applicant that they wish to resume residence at prop- erties applicant was to cause his family to vacate part of property that was previously occupied by respondents. Applicant was not to engage in abusive conduct to- wards respondents. Jajj v. 100337 Canada Ltd. (Jan. 29, CASELAW

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